The controversy in this case has reference to the ownership of six colts, the progeny of two brood mares, which the plaintiff, some ten years prior to this suit, purchased in Boston of the Rev. William H. H. Murray. The *255contract of sale provided that the plaintiff might take the mares to Murray’s farm in this state, of which she was and liad been for several years the superintendent, and there keep them as breeding mares; and all the colts thereafter foaled from them, though sired by Murray’s stallions, were to be the exclusive property of the plaintiff.
No attempt has been made by Murray’s creditors or his trustee to deprive the plaintiff of the mares so purchased, and they are now in her undisturbed possession; but the colts, while on Murray’s farm on the 1st of August, 1879, were attached by one of his creditors, who subsequently released the property to the defendant as trustee in insolvency, who had the property in his possession at the time the plaintiff brought her writ of replevin.
The sole ground upon which the defendant claims to hold these.colts is, that there was such a retention of possession by Murray after the sale as to render the transaction constructively fraudulent as against creditors.
The court below overruled this claim, and in so doing we think committed no error.
The doctrine as to retention of possession after a sale has no application to the facts of this case. A vendor cannot retain after a sale what does not then exist nor that which is already in the possession of the vendee. This proposition would seem to be self-sustaining. If, however, it needs confirmation, the authorities in this state and elsewhere abundantly supply it. Lucas v. Birdsey, 41 Conn., 357; Capron v. Porter, 43 id., 389; Spring v. Chipman, 6 Verm., 662. In Bellows v. Wells, 36 Verm., 599, it was held that a lessee might convey to his lessor all the .crops which might be grown on the leased land during the term, and no delivery of the crops after they were harvested was necessary even as against attaching creditors, and that the doctrine as to retention of possession after the sale did not apply to property which at the time of the sale was not subject to attachment and had no real existence as property at all.
The case at bar is within the principle of the above authorities, for it is very clear that the title to the property *256in question when it first came into existence was in the plaintiff.
In reaching this conclusion it is not necessary to hold that the mares became the absolute property of the plaintiff under Massachusetts law without a more substantial and visible' change of possession, or that under our law, the title to the mares being in the plaintiff clearly as between the parties, the rule imported from the civil law, partus sequitur ventrem, applies.
We waive the consideration of these questions. It will suffice that, by the express terms of the contract, the plaintiff was to have as her own all the colts that might be born from these mares. That the law will sanction such a contract is very clear.
It is true, as remarked in Perkins on Conveyances (tit. Grant, § 65,) that “ it is a common learning in the law that a man cannot grant or charge that which he has notyet it is equally well settled that a future possibility arising out of, or dependent upon, some present right, property or interest, may be the subject of a valid present sale.
The distinction is illustrated in Hobart, 132, as follows:— “ The grant of all the tithe wool of a certain year is good in its creation, though it may happen that there be no tithe wool in that year; but the grant of the wool which shall grow upon such sheep as the grantor may afterwards purchase, is void.”
It is well settled that a valid sale may be made of the wine a vineyard is expected to produce, the grain that a field is expected to grow, the milk that a cow may yield, or the future young born of an animal. 1 Parsons on Contracts, (5th ed.,) page 523, note 1c, and cases there cited; Hilliard on Sales, § 18; Story on Sales, § 186. In Fonville v. Casey, 1 Murphy (N. C.), 389, it was held that an agreement for a valuable consideration to deliver to the plaintiff the first female colt which a certain mare owned by the defendant might produce, vests a property in the colt in the plaintiff, upon the principle that there may be a valid sale where the title is not actually in the grantor, if it is in him potentially, *257as being a thing accessory to something which he actually has. And in McCarty v. Blevins, 5 Yerg., 195, it was held that where A agrees with B that the foal of A’s mare shall belong to O, a good title vests in the latter when parturition from the mother takes place, though A immediately after the colt was born sold and delivered it to B.
Before resting the discussion as to the plaintiff’s title we ought perhaps briefly to allude to a claim made by the defendant, both in the court below and in this court, to the effect that if the plaintiff’s title be conceded she is estopped from asserting her claim. This doctrine of estoppel, as all triers must have observed, is often strangely misapplied.. And it is surely so in this instance. The case fails to show any act or omission on the part of the plaintiff inconsistent with the claims she now makes, or that the creditors of Murray or the defendant as representing them were ever misled to their injury by any act or negligence on her part. On the contrary the estoppel is asserted in the face of the explicit finding, that “ as soon as the plaintiff became aware of the attachment of her horses she forbade the officer taking the same, and demanded their immediate' return to her.”
The only fact which is suggested as furnishing the basis for the alleged estoppel is, that from the first of August, 1879, to the 12th of January next following, “no attempt was made by the plaintiff to maintain her title by suit, although she was living during the time at Guilford where said colts were.” But who ever heard of an estoppel in an action at law predicated solely on neglect to bring a suit for the period of five months ? To recognize such a thing for any period short of the statute of limitations would practically modify the statute and create a new limitation. Furthermore, in what respect have the defendant and those he represents been misled to their injury by this, fact? The plaintiff never induced the taking or withholding of her property. And can a tort-feasor or the wrongful possessor of another’s property object to the delay in suing him for his wrong, and claim, as in this case, an estoppel on the ground that his own wrongful possession proved a very expensive *258one to him, amounting even to more than the value of the property ? He might have stopped the expense at any time by simply giving to the plaintiff what belonged to her.
The single question of evidence which the record presents we do not deem it necessary particularly to discuss. It will suffice to remark that if the defendant’s testimony was admissible to show that Murray, after the sale to the plaintiff, (and so far as appears in her absence,) claimed to own the. mares and colts, it was a complete and satisfactory reply for the plaintiff in rebuttal to show that- Murray’s own entries, (presumably a part of the res gestee,) in the appropriate books kept by him, showed the fact to be otherwise, and in accordance with the plaintiff’s claims.
At any rate it is very clear that no injustice was done by this ruling to furnish any ground for a new trial.
There was no error in the judgment complained of and a .new trial is not advised.
.In this opinion the other judges concurred.